Texas Judge’s Immigration Rebuke May Be Hard to Challenge

David Ingram and Mica Rosenberg, Reuters, February 18, 2015

President Barack Obama’s administration faces a difficult and possibly lengthy legal battle to overturn a Texas court ruling that blocked his landmark immigration overhaul, since the judge based his decision on an obscure and unsettled area of administrative law, lawyers said.

In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans.

The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing.


The U.S. Justice Department was preparing an appeal of Hanen’s temporary injunction to the 5th U.S. Circuit Court of Appeals in New Orleans, Obama said. The court could consider an emergency request to block Hanen’s ruling, potentially within days, although most of the 23 judges on the court were appointed by Republican presidents.

There was no consensus among lawyers with expertise in administrative law and immigration law on whether Hanen would be reversed on appeal. But they said the judge was wise to focus on an area of administrative law where legal precedent is sometimes fuzzy.


The “notice and comment” requirement acts as a brake on all presidents, slowing their plans by months or years.

The requirement, though, does not apply to “interpretative rules” or general statements of policy, an exception that Justice Department lawyers said applied to Obama’s announcement in November. Rules that must be submitted for notice and comment are sometimes known as “legislative rules.”

For Hanen, the pivotal question became whether the new rules, such as granting work permits to potentially millions of illegal immigrants, was binding on federal agents or merely general guidance. He ruled that they were binding, and that Obama should have allowed for notice and comment.

Lawyers with expertise in administrative law said there was little guidance from the U.S. Supreme Court on what qualifies as a rule that needs to be published, leaving disagreement among lower courts and a grey area for Hanen to work in.


An appeal before the 5th Circuit could take months, as lawyers file written briefs and the court holds oral argument and comes to a decision.

The appeals court could also consider other questions, such as whether the states that brought the lawsuit had what is known as standing to sue or whether Obama violated the clause of the U.S. Constitution that requires presidents to “take care that the laws be faithfully executed.”

There is no chance Obama would begin the notice-and-comment period now, because U.S. immigration policy would be frozen in place during the lengthy process, said Peter Margulies, an immigration expert at Roger Williams University School of Law in Rhode Island.

He said it could delay Obama’s policy for “a minimum of six to eight months, and potentially much longer.”

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  • Capn Dad

    I certainly hope it can’t be challenged. Good news has been hard to find lately.

  • MekongDelta69

    As I mentioned yesterday — My AmRen ‘feel-good’ (now two) article(s) of the week.

  • phorning

    This is good, but it still doesn’t start the deportation process or do anything to secure the border.

    • Publius Pompilius Quietus

      … or touch legal immigration. I’m opposed to illegal immigration, but all in all, it is a distraction.

    • LHathaway

      “deportation process”

      haha, maybe if they Kill someone, they might be deported. Maybe.

  • Luca

    I hope this at least buys time until 2016. Then I hope for the best.

  • johningermany

    God bless this judge.

    • NoMosqueHere

      I’m glad a US District Court Judge stood up to King Hussein, but who’s going to deport the lawbreakers?

      • newscomments70

        It looks like we have to. No one will do it for us.

  • WR_the_realist

    What annoys me is that even when a judge blocks a law like this he always does so on the basis of some technical procedural matter. We never have judges just straight out rule that it’s unconstitutional.

    • Too easy to appeal that kind of ruling, the Supremes just reinterpret the Constitution. A technicality it can be argued forever on technical grounds.

    • Bossman

      That is because they know better. Immigration is a Federal matter and only congress can fix or undo anything pertaining to immigration.

      • Alexandra1973

        According to Article 4, Section 4 of the Constitution the government is to protect each state from invasion.

        • WoodyBBad

          They’ve been doing a rather crap job of that, rolling out the carpet.

        • Bossman

          When the Framers of the Constitution spoke of invasion, what they had in mind was an army led by generals, not migrant workers.

  • Dave4088

    I’d sure like to be hopeful, but Hussein Mugabe will likely just ignore the ruling and stay the course. After all, who’s going to stop him? Mitch McConnell and the Senate Rinos?

  • rommel10

    three cheers for this judge

  • Petronius

    Judge Hanen had better watch his six.

    Of course Nerobama may just bypass the judge’s injunction in the same way that he bypassed Congress. After all, he has successfully done so several times in the past — in the case of the federal judge in New Orleans who (twice) struck down Nerobama’s drilling moratorium, only to have his order ignored (twice). Or, in the case of the NLRB, where Nerobama kept his appointees on the NLRB, notwithstanding court decisions that his “recess” appointments were unconstitutional.

    • Hank Richter

      Yaknow, that’s kinda what I’m saying, and let’s all be honest, all this stuff did not start with Obama. I mean really do laws and procedures even matter anymore? The govt wants to do something they just do it, how many things does the govt do day in and day out that they never got permission from the people for, if he doesn’t abide by this ruling what is anyone really going to do about it?

  • Paleoconn

    Sessions-Hanen 2016
    Obama-Impeachment 2015

    • Alexandra1973

      I’d say what difference does it make, Obummer has a couple years to go…but he’s got the phone and the pen, so who knows what havoc he’ll wreak during that time.

  • MBlanc46

    It’s hard to imagine a lone federal judge stopping the Obama administration, but even slowing them down is worth something.

  • Pelayo

    Good, bury this thing in lawsuits so it doesn’t see the light of day.

  • Albert

    The next two years will determine if the republicans will take back the nation or become a minority themselves. We gave our support by voting them in. They now stand as the majority in the House and the Senate. I hope they can break from their “please everyone” moderate tendencies and take a hard, collective stand against illegal immigration.

    • Robert Smith

      If they plan to take a hard stand they better get going.

    • Hank Richter

      Do you honestly believe anything you just wrote? Go look at the donor list of most Republicans, they people who donate to them want amnesty, they make tons of money in this debt based economy.

      I can’t understand why so many of you still seem to have this loyalty and hope for the Rep party, they are politicians, they don’t care one bit about ideology or any of that stuff. Again, look at their donors, that will tell you all you need to know.

      • newscomments70

        I believe that some less prominent Republican congressmen understand the truth and are on our side. If they did stand up for us, they would be effectively silenced and their characters would be assasinated. The Republican elite is either driven by a combination of greed and the Stockholm syndrome.

        • Hank Richter

          Mmmm, yes and no, I really have noticed everyone is sort of in a constant fear of this, yet I say first off look at all the people who have groveled (Don Imus) and what has happened to them? Were they forgiven? Welcomed back into the fold? No, Imus got fired anyway and all it did was teach the Marxists they can bully who they like, not to mention shred and dignity Imus may have had.

          Now look at all the people who stuck to their guns like the Duck Dynasty guy and his family, people by the millions rallied to thier side, ditto with Chick-fil-A (even tho they wimped out later I think), honestly I feel as tho there are many people, not just whites, who are sick of this Marxist crap and have a whole lot of respect for those who will be bold and stand up for what they believe.

          • newscomments70

            I remember when Angela Merkel made her comment about mulitculturalism being a total failure in Germany. She seems to have made a 180 degree turn and has kicked into full grovelling mode. I imagne that she was threatened and “re-educated” to work with the program. I know that is a different country, but they all work for the same people.

          • Hank Richter

            When did she say that? I’m not asking as tho I’m saying you’re wrong, I am just wondering when she did, I’d like to read about it, I was not aware of it.

          • newscomments70

            It looks like 2010. You can google it, it comes up fairly quickly. I remember the news…liberals screaming about nazis coming back, etc. Here it is in German: Angela Merkel multikulturalismus ist gescheitert. That will bring up several articles.

          • Hank Richter

            Cool. Thanks.

  • LHathaway

    You would be closer to the mark if you said they are here to marry/impregnate White women. Nice going with the ‘criminal behavior, parasite, terrorize rape and ultimately murder Whites’. That may come in the end, after they impregnate enough white women with their spawn.

    Nice post, actually.